Subsection 5.8.2: Sale of the assets of a debtor in bankruptcy Article 325
(application of Subsection 5.8.2)
(1) Subsection 5.8.2 of this Act shall apply to the sale of all assets which belong to the common or special bankruptcy estate, unless otherwise provided for in the second or third paragraph of this Article.
(2) The sale of assets in execution procedure which the enforcement court continues under the second paragraph of Article 281 of this Act, or opens by virtue of a final resolution referred to in point 2 of the first paragraph of Article 304 of this Act, shall be subject to the rules which apply in respect of such execution procedure.
(3) The sale of assets which are the subject of the right to separate settlement referred to in the first paragraph of Article 282 of this Act shall be subject to the general rules referred to in the second paragraph of Article 282 of this Act.
Article 326
(preparations for sale)
Preparations for the sale of the assets of a debtor in bankruptcy shall include:
1. an estimate of the value of such assets, and
2. the collection of other information for the assessment of the most favourable conditions as regards time limits for its execution, and the purchase price which could be reached.
Article 327
(estimation of the value of assets)
(1) The administrator shall, for each asset composing a bankruptcy estate, obtain an estimate of its value for the purpose of sale (hereinafter refereed to as: estimate of the value of assets).
(2) The estimate of the value of assets shall be carried out by a valuer certified for the type of assets which are the subject of the estimation, unless otherwise provided for by the law in respect of a particular case.
(3) The estimate of the value of the assets shall be carried out on the basis of the market value and liquidation value in accordance with the standards for the estimation of value provided for by the law governing auditing.
(4) If the subject of the estimate is the value of assets which form a business whole, the certified valuer shall prepare:
1. an estimate of the value of each item or other asset which is included in the business whole, pursuant to the third paragraph of this Article, and
2. an estimate of the value of the business whole, assumed to be an operating company, in accordance with the standards for estimating value provided for by the act governing auditing.
Article 328
(collection of other information for assessing the most favourable sale conditions)
(1) If the value of assets can not be estimated on the basis of comparable market prices, the administrator shall publish a non-binding call for tenders or carry out other actions to obtain the information necessary for the assessment of the most favourable sale conditions.
(2) The non-binding call for tenders shall be a public invitation to make offers where the opening price is not determined and the obligation of the debtor in bankruptcy to conclude a contract with the bidder offering the highest price is excluded.
(3) The procedure of a non-binding call for tenders shall, mutatis mutandis, be subject to the first paragraph, points 1 and 5 to 7 of the second paragraph, and the third paragraph of Article 335 of this Act.
Article 329 (method of sale)
(1) A contract on sale of assets of the debtor in bankruptcy may be concluded only on the basis of a public auction or binding call for tenders, unless otherwise provided for in the fourth paragraph of this Article.
(2) A public auction shall be an invitation to make offers whereby the debtor in bankruptcy undertakes to conclude a sales contract with the auctioneer who will offer the highest price at auction.
(3) A binding call for tenders shall be a public invitation to make offers whereby the debtor in bankruptcy undertakes to conclude a sales contract with the bidder who will offer the highest price, however not lower than the opening price, and if more than one bidder offers the same the highest price, with the one offering the shortest deadline for payment.
(4) If the public auction or the procedure of binding calls for tender for the sale of a particular asset is not successful, the contract of sale of such asset may be concluded on the basis of direct negotiations with the purchaser who made the offer in the procedure of non-binding call for tenders referred to in the second paragraph of Article 328 of this Act, carried out prior to the beginning of direct negotiations.
Article 330 (opening the sale)
(1) The sale shall be opened by virtue of a court resolution on sale (hereinafter referred to as: resolution on sale).
(2) No assets of the debtor in bankruptcy shall be sold before the resolution on the initiation of bankruptcy proceedings becomes final, unless otherwise provided for in the law in respect of a particular case.
(3) If a creditor with exclusion right has declared such right, which has been negated, in due time, the sale of the assets which are the subject of such exclusion right shall not be opened until:
1. the claim of the creditor with the exclusion right referred to in the first paragraph of Article 309 of this Act is finally refused, or
2. the exclusion right does not expire under the third paragraph of Article 310 or the third paragraph of Article 311 of this Act.
Article 331 (resolution on sale)
(1) The court issues a resolution on sale upon the proposal by the administrator and on the basis of an opinion of the creditors' committee.
(2) With a resolution on the first decision on the sale of a particular asset (hereinafter referred to as: first resolution on sale), the court shall determine:
1. the method of sale,
2. the initial minimum bid for public auctions, or the opening price for a binding call for tenders, and
3. the amount of security.
(3) If the public auction or the procedure of call for tenders for the sale of an individual asset on the basis of the first resolution on sale has not been successful, the court may with an additional resolution on sale (hereinafter referred to as: additional resolution on sale):
1. either:
– readjudicate that the sale is to be executed by virtue of a public auction or binding call for tenders, and
– determine a lower initial minimum bid or opening price than in the first resolution 2. either decide that a non-binding call for tenders should be carried out with a view to a sale on the basis of direct negotiations under the fourth paragraph of Article 329 of this Act.
Article 332
(initial minimum bid or opening price)
(1) The court shall determine the initial minimum bid or opening price on the basis of the estimated value of assets.
(2) The initial minimum bid or opening price shall for the first resolution on sale not be lower than one half of the value estimated on the basis of liquidation value.
(3) With the additional resolution on sale, the court may determine an initial minimum bid or opening price in the amount lower than one half of the value of assets estimated on the basis of liquidation value, if the creditors’ committee consents thereto.
(4) The first to third paragraphs of this Article shall apply mutatis mutandis also for the determination of the price in a sales contract concluded on the basis of direct negotiations under the fourth paragraph of Article 329 of this Act.
Article 333 (security)
(1) Security shall be an amount the payment of which shall enable the auctioneer at a public auction, or bidder at a call for tenders, to consolidate his obligation to
conclude a sales contract, provided to have success at the auction or in the procedure of call for tenders.
(2) The amount of security shall not be lower than:
1. if the initial minimum bid or opening price is not higher than EUR 200 000: 10 per cent of the initial minimum bid or opening price,
2. in other cases: EUR 20 000 and also than 5 per cent of the initial minimum bid or opening price.
(3) Public auctions or procedures of calls for tenders may be attended only by those who pay a security one working day before the public auction or until the expiry of the time limit for the submission of tenders at calls for tenders, unless otherwise provided for in the fourth paragraph of this Article.
(4) If the amount of security is higher than EUR 20 000, the auctioneer or bidder may, instead of paying the security, deliver an irrevocable bank guarantee within the time limit referred to in the second paragraph of this Article, to the benefit of the debtor in bankruptcy as the beneficiary, upon the first call by the bank having a registered office in the Republic of Slovenia or another Member State of the European Union, in the amount equal to the amount of the security, to secure his obligation to pay a penalty for failing to meet the obligation of concluding a sales contract referred to in the eighth paragraph of Article 334 or sixth paragraph of Article 335 of this Act.
(5) If the auctioneer or bidder is not successful in the public auction or procedure of call for tenders, the debtor in bankruptcy shall return to him the amount of the paid security or the bank guarantee within three working days after the public auction is closed, or after the expiry of the time limit for the administrator to submit a statement on the selection of the bidder at the public call for tenders.
(6) If the auctioneer or bidder is successful in the public auction or procedure of call for tenders, and concludes a sales contract pursuant to this Act, the payment of security shall be considered as depositing earnest money as the indication of a conclusion of such a sales contract.
Article 334
(public auction)
(1) If the court decides with a resolution on sale that the sale of assets should be carried out by virtue of a public auction, the administrator shall, within eight days following the finality of such resolution, submit to the court an invitation to tender for a public auction with a view to publication under the first paragraph of Article
122 of this Act, which the court shall publish on the next working day following the receipt..
(2) The invitation to tender for the public auction shall contain:
1. a description of the assets to be sold,
2. the initial minimum bid and the raise of such bid in an individual step of the auction,
3. the amount of security and the number of the transaction account of the debtor in bankruptcy to which the payment of such amount is to be credited,
4. other conditions of sale pursuant to Articles 337 to 343 of this Act, 5. the day, hour and place of the auction,
6. the place where the assets to be sold may be examined, and the time when such examination is possible.
(3) The invitation to tender for the public auction shall be published at the latest:
1. if the initial minimum bid is higher than EUR 50 000: one month prior to the auction day,
2. in other cases: eight days prior to the auction day.
(4) The auction shall be conducted by the administrator or another person under his authorisation.
(5) Minutes shall be kept on the course of the auction.
(6) When the auction is closed, the person conducting the auction shall announce the auctioneer who has succeeded at the auction, and inform him of the time when the written contract is to be concluded, which shall not be later than three working days after the auction is closed.
(7) The administrator shall prepare the wording of the contract to be signed by the administrator and the auctioneer who has succeeded at the auction, on the premises of the debtor in bankruptcy at the time referred to in the sixth paragraph of this Article, if they do not agree on some other place for the conclusion of the contract.
(8) If the auctioneer who succeeded at the auction does not sign the contract at the time referred to in the sixth paragraph of this Article, he shall pay to the debtor in bankruptcy a penalty for non-fulfilment of the obligation to conclude the sales contract in the amount equal to the amount of the security.
(9) In the case referred to in the eighth paragraph of this Article, payment of the security shall be considered as payment of the penalty, and the debtor in bankruptcy shall thus maintain the paid amount of the security.
Article 335(invitation to make offers )
(1) If the court decides with a resolution on sale that the sale of assets should be carried out by virtue of a public call for tenders, the administrator shall, within eight days following the finality of such resolution, submit to the court an invitation to make offers with a view to publication under the first paragraph of Article 122 of this Act, which the court shall publish on the next working day following the receipt.
(2) The invitation to make offers shall contain:
1. a description of the assets to be sold, 2. opening price,
3. the amount of security and the number of the transaction account of the debtor in bankruptcy, to the credit of which the auctioneer shall pay such amount,
4. other conditions of sale pursuant to Articles 337 to 343 of this Act, 5. time limit for submission of offers,
6. the place where the assets to be sold may be examined, and the time when such examination is possible,
7. the time limit by which the bidders shall be informed on the result of the public call for tenders.
(3) The invitation to make offers shall be published at the latest:
1. if the initial minimum bid is higher than EUR 100 000: two months prior to the expiry of the time limit for the submission of offers,
2. in other cases: one month prior to the expiry of the time limit for the submission of offers.
(4) The administrator shall inform the bidders on the result of the public call for tenders within the time limit determined in the invitation to make offers, which shall not be later than fifteen days following the expiry of the time limit for submission of offers.
(5) The administrator shall provide the bidder who succeeded in the procedure of public call for tenders, in addition to the notification of the result, also with the wording of the contract, and call on him to provide the administrator with a signed copy of the contract within three working days following the receipt.
(6) If the bidder who succeeded in the procedure of public call for tenders does not provide the administrator with a signed copy of the contract within the time limit specified in the fifth paragraph of this Article, he shall pay to the debtor in bankruptcy a penalty for non-fulfilment of the obligation to conclude the sales contract in the amount equal to the amount of the security.
(7) In the case referred to in the sixth paragraph of this Article, payment of the security shall be considered as payment of the penalty, and the debtor in bankruptcy shall, thus, maintain the paid amount of the security.
Article 336
(other conditions of sale)
(1) A sales contract concluded by the debtor in bankruptcy shall be subject to the rules laid down in Articles 337 to 343 of this Act.
(2) The application of the rules referred to in the first paragraph of this Article may not be excluded by virtue of the contract.
Article 337
(persons with whom the contract shall not be concluded)
(1) The debtor in bankruptcy shall not conclude a contract on the sale of assets with:
1. a person who has, in the last two years prior to the initiation of bankruptcy proceedings, performed the function of a member of the management or supervisory body, or a function of the holder of procuration of the insolvent debtor,
2. a bankruptcy administrator or judge conducting the procedure,
3. a shareholder the shareholding of whom in the capital of the debtor in bankruptcy is greater than 10 per cent,
4. a person who holds in relation to the person referred to in points 1, 2 or 3 of this paragraph the position of a closely related person,
5. a legal entity in the capital of which the person referred to in points 1 to 4 of this paragraph holds a shareholding greater than 50 per cent.
(2) The purchaser shall, prior to concluding the contract with the debtor in bankruptcy, give a written statement that no obstacle exists to concluding the contract referred to in the first paragraph of this Article.
(3) The first paragraph of this Article shall not apply to a sale to a person entitled to exercise a pre-emptive right who, pursuant to this Act, exercises a legally protected pre-emptive right.
Article 338 (earnest)
(1) The purchaser shall, as an indication of concluding the contract, deposit earnest money within the time limit specified in the contract, which shall not be longer than five working days following the conclusion of the contract.
(2) Determination of the amount of the earnest shall, mutatis mutandis, be subject to the second paragraph of Article 333 of this Act.
(3) The sales contract shall be concluded under the condition of deferral, that the purchaser deposits the earnest money referred to in the first paragraph of this Article, and under a resolutory condition which is realised if the purchaser fails to deposit the earnest money within such time limit.
Article 339
(time limit for the payment of purchase price and delivery of assets sold to the purchaser)
(1) The time limit for the payment of the purchase price shall not be longer than three months following the conclusion of the sales contract.
(2) The purchaser may refuse to pay the purchase price until the court resolution on the consent to the sales contract becomes final.
(3) If the payment of the purchase price by the purchaser is in delay for more than fifteen days, the debtor in bankruptcy may withdraw from the sales contract, without being obliged to give to the purchaser an additional time limit for fulfilment.
(4) The debtor in bankruptcy shall not deliver the own property of the sold assets to the purchaser, nor carry out any other legal actions for the transfer of ownership or any other property right to the purchaser, until he pays the whole purchase price.
Article 340
(exclusion of responsibility for factual defects)
The debtor in bankruptcy shall not be responsible for factual defects in the assets which are the subject of sale.
Article 341
(consent to conclusion of sales contract)
(1) The sales contract shall be concluded under the condition of deferral, that the court will give consent thereto, and under the resolutory condition which is realised if the court refuses to give its consent.
(2) The court shall decide on consent to the conclusion of sales contract upon the proposal by the administrator.
(3) The administrator shall submit to the court the proposal for consent to the sales contract within three working days following the conclusion of the sales contract, and attach this by the wording of the contract, and concerning the method of sale:
1. at a sale on the basis of a public auction: minutes of the auction,
1. at a sale on the basis of a public auction: minutes of the auction,